US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

SA HODGE CONT

VOLUME 16

(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
THE COURT:  I will advise the jury that your return to the courtroom was delayed by a continuation of the discussion that commence just before the noon recess.
You may proceed.
MR. LOWE: Your Honor, I would like to ask some questions without introducing these just in a general way about them and I will just identify them for the witness.
Q  (By Mr. Lowe) I place before you Defendant's Exhibit 134, 135, 187, 188, 189, 190, 191 and 192 and I ask you whether those are laboratory reports which were prepared by you based on information that you and your colleagues had in your laboratory on the basis of examining items involved in this investigation?
A  Yes, sir. These are all copies of laboratory reports which were issued with my findings and findings of other agents.
Q  And I presume that with the volume of information such as that that you do not have an independent recollection of {3383} more than perhaps some particular items but that in general you rely on the recordings you made and reports you wrote when it was fresh in your mind after making the various examinations and comparisons?
A  Yes.
I cannot recall everything in these laboratory reports.
Q  But at the time you made those reports they were as accurate and correct as you could humanly make them consistent with your own examinations and the reports of examinations you received --
MR. SIKMA:  Your Honor, I would object to this as having been asked and answered earlier in the presence of the jury as well as in addition --
THE COURT:  It is repetitious.
MR. LOWE:  I don't think I asked him as to all of these. I would want the record to be complete. I don't see what harm there would be unless there is a contention this witness was not accurate.
MR. SIKMA:  We'll just object because it is repetitious. He was referring to all laboratory reports that he wrote at the time the questions were answered.
MR. LOWE:  I would like to have my record with these numbers so there is no question, Judge. I don't think there is any harm or prejudice from asking this.
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THE COURT:  You may make your record on the numbers.
Q  (By Mr. Lowe) As to the exhibits before you at this time, when you made the reports, prepared them, were they accurate and correct as you could humanly make them based on your careful preparation, on your own examination and on information given to you by your fellow workers?
A  Yes, sir. In that these reports are continuing series of examinations of items and each one is as accurate as I could be as far as I went at that time.
MR. LOWE:  Thank you. That's all the questions I have, Your Honor.
 REDIRECT EXAMINATION
BY MR. SIKMA:
Q  I would direct your attention to Government Exhibit 29-1. You testified that Government Exhibit 29C, in Coler's car, 29F from Williams' car, could have been fired from a number of different weapons, is that a correct statement?
A  Yes, sir.
Q  Now is there any question at all in your mind that they also could have been fired from Government Exhibit 29A?
A  No.
Q  During the course of your examination in these matters, you referred to -- do you have 177?
Do you have Plaintiff's Exhibit 177 there?
Plaintiff's Exhibit 177 for identification. I direct your attention to numbers on there. No. 13 and No. 17.
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Do you recognize those particular notations and handwriting alongside of those items?
A  Yes, sir.
Q  And those are Q numbers. What Q numbers do those refer to?
A  Q 100 to 105 and Q 130.
Q  Now do you know or do you remember where those particular 5.56 millimeter cartridge casings were manufactured?
A  Yes, sir. They bear the Lake City Arsenal head stamp.
Q  Now do you know whether or not the Federal Bureau of Investigation gets its ammunition from Lake City Arsenal?
A  Not directly, sir. We get it from the Department of Defense.
Q  Now Lake City Arsenal, what kind of a company is that?
A  It's a governmental run ammunition manufacturing plant.
Q  Are you familiar with any, with what kind of, or where the FBI agents get ammunition to be fired specifically from the AR15 or M16 as its militarily --
MR. LOWE:  Objection, Your Honor. It's been asked and answered. Asked on direct examination.
MR. SIKMA:  Counsel went into it on cross-examination.
MR. LOWE:  It doesn't change the fact that the question has been asked and answered.
THE COURT:  I don't recall. You concede it has been asked and answered?
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MR. SIKMA:  Not precisely; no, Your Honor. I would state, Your Honor, that the exact question has not been asked and answered. I asked him a general question, now I'm referring to specific items.
THE COURT:  You may answer the question.
A  The ammunition is sent out from the FBI headquarters to the various field offices. That is where the field offices get the ammunition from.
Q  (By Mr. Sikma) And where does that ammunition come from?
A  The headquarters gets it from the Department of Defense for the AR, the M16.
Q  And are there any instructions that go with that issue of that kind of ammunition?
A  The agents are instructed in the use of the M16 rifle.
Q  Are they instructed as to what kind of ammunition to use under normal circumstances?
A  Yes, sir.
Q  And what kind is that?
A  The military full jacketed 55 grain bullet cartridge.
Q  Now with regard to Government Exhibit 177, that lists a number of items. Who found those ticket items, if you can tell from Government Exhibit 177?
A  The exhibit has the name Dean Howard Hughes, SA Dean Howard Hughes as the recovering agent.
Q  And how many rounds did you find when you received those {3387} rounds in the items that you received?
A  Are you referring to items 13 and 17 or the whole list?
Q  What's that?
A  Are you referring to items 13 and 17 or the whole list?
Q  Yes. 13 and 17.
A  That consists of seven rounds, I believe.
MR. SIKMA:  Do you have 185 and 186 for identification?
THE CLERK:  That should be up there, too.
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Q  Now, I would direct your attention to Government Exhibit 34-1, and particularly to 34-B, from the trunk of Coler's car, do you remember when it was approximately that you began to examine that particular item along with other items in the shipment of items with which it came to Washington?
A  Yes. It was about the end of 1975, beginning of 1976; January, December, in that area.
Q  December or January, somewhere in that area?
A  In that area.
Q  Now, prior to that time had you assigned
Q  numbers to those items?
A  Yes, sir. The items had been inventoried, but I had not begun an examination.
Q  During the course of your examination did you examine any .222 caliber Remington rifles in relation to this case?
A  No, I did not.
Q  How about .222 caliber Savage rifle?
A  No, sir.
Q  How about 22-250 Remington rifle?
A  No.
Q  Did you examine any .225 caliber Winchester rifles?
A  No, I did not.
Q  Now, with regard to Government Exhibits 34-G and 34.H, could they have been fired from Government Exhibit 41-A?
A  No, sir, they could not have been.
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Q  There is no question about that in your mind?
A  No, none.
Q  Could they have been fired -- is there any question in your mind as to whether or not they could have been fired from Government Exhibit 34-A?
A  No, sir. They could have been fired from that weapon.
MR. SIKMA:  I have no further questions.
MR. LOWE:  May I have just a moment, your Honor?
THE COURT:  You may.
 RECROSS EXAMINATION
By MR. LOWE:
Q  Do you have the January 13 report there in front of you? I don't know what the exhibit number on that is.
187. Now, I show you Defendant's Exhibit 187 which is a laboratory report dated January 13, 1976, approximately six and a half months after this incident; and I call your attention to Page 3 whereon is shown Q100 to 105 which is listed as six 5.56 millimeter cartridge cases, and Q130 which lists a 5.56 millimeter cartridge case, which Mr. Sikma asked you about and you indicated they were Lake City Arsenal cases.
Do you find this anywhere in that report that these were Lake City Arsenal casings?
You can take a moment and look. I don't mean to have you answer off the top of your head.
A  I think for these items I would have to refer to the report {3390} of August 5.
Q  Refer to any report you want. I didn't mean to limit you to any one.
Can you find any report that says that they are Lake City Arsenal casings?
A  Let me check and see whether I did set that out in a report or not. (Examining) I did not mention in the report the manufacturer of those items.
Q  Back in 1975, let's say from June of 1975 and later, did you know this information that you have just imparted to us, that Lake City Arsenal casings are military casings; and that then you, I assume, associated those with military or FBI use?
A  Did I? Yes, sir, I believe.
Q  You knew that fact then?
A  I don't think I understand. I knew that Lake City Arsenal made cartridges for the military.
Q  Well, if you receive a .223 cartridge then in the process of going through a whole lot of cartridge casings, I gather from what you say as an expert it calls your attention to the probability that that was not fired by a civilian, is that the substance of what you would say?
A  I don't think I would give it that much credibility, as to whether it was fired by a civilian or not, as this ammunition is not all that restricted as far as I know. I mean, I didn't pay that much attention to it.
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Q  Do you know of any arsenals that sell to civilians?
A  No, I do not.
Q  In your experience isn't it true that arsenals don't sell to civilians?
A  Yes. However surplus ammunition is at times put on the commercial market so -- I don't give it that much weight or credibility.
Q  So you didn't even make a notation that this might be Government issue or might relate to FBI weapons fired at the time or anything to even raise that question in any of your reports, as far as you remember?
A  I did not specifically mention that, no, sir.
Q  Now, I am looking at Government Exhibit 177, and Item 13 contains a handwritten notation, Q100-105, with an arrow which I understand you identify as being made either by you or by one of your associates?
A  Yes, sir, we marked that.
Q  Did you carefully read the items on here to see whether they matched up with the items that you were receiving along with the green sheet at the time you received them?
A  Yes. To the best of our ability we correlated all the items.
Q  And in any instance when you do not find all of the items listed or if you find an excess of items, do you make a report or a notation of some sort to the effect that the transmitting {3392} document was not accurate?
A  It depends on the nature of the mistake. If it is -- if I find more items than I supposed to, generally I don't get too alarmed about it. It is when I am missing items, then I will start to wonder what is going on.
Q  So you wouldn't find it unusual that an FBI Agent, trained in evidence collection, would say "5.56 millimeter Lake City cartridge case -- singular -- and that you would find six cartridge cases to associate with that item?
A  I don't find it unusual in the sense that it could just be a typographical error, in that the steno left off the "s" on the end of "case".
Q  I ask you to look at the other items on there. In every case where there was more than one case, whether or not it states in the first word of the description the number of cartridge cases, two cartridge cases, five cartridge cases?
A  (Examining).
Q  Isn't that the general pattern there?
A  Yes.
Q  This stenographer not only forgot the "s" but also forgot to put the word "six" in in order for that to be a stenographic error?
A  If the agent had it written in there, yes, sir.
MR. LOWE:  No further questions, your Honor.
Could we approach the bench for a moment?
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THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. LOWE:  If your Honor rules against the admission of those documents there are certainly parts of them that at the very least or perhaps substantially all of -- some of them that I would want to read to the witness or have the witness's read or in some way introduce testimony. That would be excruciatingly time consuming, but it would be important. That's one of the reasons we feel the document would be admissible.
As I stated I would not want to do that unnecessarily What I would like to do is conclude my cross examination subject to recall if it becomes necessary because the Court rules those documents are not admissible. Otherwise I would be forced to simply proceed at this time, and I would rather not do that. It would be quite time-consuming.
MR. SIKMA:  Your Honor, I use the word cautiously, but I think they are using that as blackmail when they say we will have to go into these or we will have to hold up this Government witness. I think that the Defendants have had available an expert who examined absolutely every question that the Government had presented to the Defendant is in discovery. Every single item that this witness examined was examined by a man who is a firearms expert, who worked {3394} for the Defendant, and apparently they could call him and make the same questions, same examinations; and I think that would be a fair way to approach it rather than to require this witness to stay around.
If the Court allows these documents in and if counsel wants certain particular items in, that's another question; but to say that if they all dolt get in, at this time this witness should be held up. I would say that's totally unfair to the Government and to this witness in addition.
~MR. LOWE:  Judge, that's not what I am saying. Let me clear up the record. Mr. Sikma once again is having flashbacks to last summer. There was a witness whose name was Dr. Nichol -- (spelling) N-i-c-h-o-l -- I am not positive, I didn't deal with him myself very much. He was a witness. He was called as a defense expert. He did some examinations. He is not available to us this year, and in fact I have it on good information that there was some mix-up on his CJA. He never got paid or was paid very, very, very little for what he did. He was quite upset, and I believe he has refused to have any further dealings with us because of that. That is irrelevant, because the question here is we are not asking for expert opinion based on something he would look at now, it is to recall testimony about test that he already made back then when he had these items.
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That is nothing that an independent expert can give. This is asking him for his knowledge and procedures.
Now, I am not saying that if the Court doesn't admit those, we will hold up the witness and use him.
What I am saying, in the course of this trial I would have to ask him an awful lot of questions if the only way I could get this information in the record was excluded by the Government not allowing -- or the Court not allowing us to introduce those documents.
What I am saying is that I would not want to inconvenience this witness and clutter up the record by going through this if the Court is going to properly allow us to introduce them in evidence and we can use the exhibits themselves. That's one of the reasons why exhibits are introduced, so you don't have to read the whole thing verbatim to the jury. I am not trying to blackmail anybody. I am just suggesting that he stand by or be subject to recall so that when your Honor rules we will know whether we do or not.
THE COURT:  It would be my suggestion that if you have any more evidence that you desire to get from this witness, that you do it now.
MR. LOWE:  Well, the evidence that I want is in the documents.
THE COURT:  I understand.
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MR. LOWE:  Do I understand that, your Honor, if I have to assume that I must protect myself against nonadmission, that the only alternative I have now is to read the documents to the witness; and I mean that's the essence of what I have said about the documents, is that I would want the jury to know all of the items that are listed in order to prove the non-inclusion of some very important information. I hesitate to start reading all those documents to the jury unless your Honor rules that I may not.
MR. SIKMA:  Your Honor, I would submit that the fact that some items may not have been found, some items of evidence have not been found, someone successfully concealed them, the fact that if they are important matters of evidence that we haven't introduced them, the Defendant can simply argue that as to where they are, question where they are. They are not here. It may be that on a lot of these items the defense is merely speculating that they exist.
Now, that doesn't mean that the counsel is entitled to go through 3,000 items and say, "Did you find, did you examine a given item, and were you able to connect it with any of the firearms in this case?" And he would say "No."
That doesn't mean, No. 1, that they couldn't necessarily be connected in a lot of cases because sometimes there are {3397} just insufficient markings to show that, sometimes a weapon may leave no markings at all, sometimes the items may just not have been found.
The FBI worked in this crime scene area for a couple of days, but the grass, foliage is high; and it is possible there are items that are still out there that have never been found, you know.
I don't think it logically follows that every item that's in this report that did not prove something or items that were never found and are consequently not on this report, make these reports admissible -- it just does not.
THE COURT:  I am not ruling at this point whether they are admissible or not admissible I am just saying it seems to me if there are some more questions to ask of this witness, this is the time.
MR. LOWE:  To summarize my position, my position is, No. 1, I think I am entitled to have a ruling on the admissibility of those documents before we release this witness from all cross examination because I may want to offer modifications if there are specific items in the document that you feel are not admissible, other parts would be.
No. 2, I think it would be very prejudicial if I had to read extensive portions, many pages of single-spaced {3398} items to the jury. I think they could get aggravated. I think they could get upset. They are sequestered, and it is taking so long. If it is unnecessary because the Court admits all or portions of those documents, requiring me to do that to protect my record prior to your Honor ruling is prejudicial to the defense. I would decline to ask any further questions as to those documents, that's all I would have left to ask is what is contained in those exhibits. I would decline to ask any more questions about the exhibits until your Honor rules, and ask the witness not be released; because if your Honor admits these, I have no further questions.
I am sure this witness has a lot of important things to do, but they have to yield in this case, I suspect, to the convenience of the Court.
THE COURT:  There is no way I can give fair consideration to those documents without taking the time to look them over.
MR. LOWE:  I agree.
THE COURT:  It appears to me that you are just about done --
MR. SIKMA:  (Interrupting) One more witness.
THE COURT:  (Continuing) -- with the Plaintiff's case
So where does that leave us then as far as the time frame is concerned?
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MR. SIKMA:  I suppose the defense can call this witness if they need to.
THE COURT:  The only reason I am hesitating is because you made some comment yesterday that this witness is needed somewhere else.
MR. SIKMA:  He is, your Honor. He has, I believe, a number of things piling up.
MR. LOWE:  I will stipulate that everybody involved in this case has things piling up.
MR. SIKMA:  He has court appearances piling up, so his availability might be somewhat hampered. We wouldn't be able to get him at a moment's notice.
MR. LOWE:  I would be willing to do this, your Honor, I would be willing to allow or to agree that he would be released in the sense of not keeping him available here, subject to additional cross examination at some point; in other words, the difference I am pointing out is the difference between some limitations on counsel in direct examination rather than cross examination, but to take him in turn during the defense case. I am not objecting to that.
I think your Honor ought to have a chance carefully to consider those exhibits; and that, it would seem to me, would sort of meet everybody's needs at this point; and let your Honor take that under advisement with the {3400} understanding that if you rule against the admissibility, that we would be allowed additional cross examination of this witness during the defense case. I think that's fair, or maybe we could stipulate something too?
MR. SIKMA:  Perhaps we can, if you are just going to read them and say, "Is this in your report?"
MR. LOWE:  That's part of what I might have to do to get the evidence in.
MR. SIKMA:  If counsel would allow counsel to do that, we would not want to waive our objection to the questions asked; but if the Court ruled, "Yes, he could ask those questions in that manner," we would allow him. We could stipulate.
THE COURT:  That sounds reasonable.
MR. LOWE:
A  reasonable compromise.
THE COURT:  Very well.
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MR. SIKMA:  I have nothing further, Your Honor.
MR. LOWE:  I have nothing further of this witness on the record, Your Honor.
THE COURT:  You may step down.
MR. SIKMA:  Your Honor, at this time the Government has certain stipulations to read with regard to items of evidence Government Exhibit, this refers to the written stipulation signed by both parties, Government Exhibit 18-B "Auto inspection form pertaining to Bureau automobiles of Ronald A. Williams. It is here by stipulated and agreed -- "
THE COURT:  Mr. Sikma, give the marshals and the bailiff time to move the case.
MR. SIKMA:  Thank you, Your Honor.
THE COURT:  You may now proceed.
MR. SIKMA:  "Government Exhibit 18-A, Auto usage records pertaining to Agent Ronald A. Williams bureau car and description of said automobile. Government Exhibit 18-B, Auto inspection form pertaining to the bureau automobile of Ronald A. Williams. It is hereby stipulated and agreed by the parties that if the custodian or other qualified witness were called he would testify that said exhibit was kept in the course of the regularly conducted business activity, and that it was the regular practice of that activity to make such a record. Further foundation is waived."
"It is further stipulated and agreed that the bureau {3402} car of Ronald A. Williams was free of bullet holes prior to January 26, 1975."
Government would offer into evidence with that, Government Exhibit 18-A and 18-B.
MR. LOWE:  No objection, Your Honor.
THE COURT:  18-A and 18-B are received.
MR. SIKMA:  "Government Exhibit 19-A, Documents assigning bureau automobile to Jack R. Coler, description of automobile. Government Exhibit 19-B, monthly automobile inspection report pertaining to Jack R Coler, Coler's bureau automobile. Colorado license number KE1194, dated 4/30/75. Government Exhibit 19-C, worksheet from Doug Borman Chevrolet pertaining to repair of Jack R. Coler's automobile."
It is here by stipulated and agreed by the parties that the above documents and exhibits are authentic and if the custodian or other qualified witness were called they would state that said documents are kept in the course of the regularly conducted business activity. And it was the regular course of that business activity to make such records. Further foundation is waived."
"It is further stipulated and agreed that the bureau car, bureau automobile of Jack R. Coler was free of bullet holes prior to June 26, 1975."
At this time, Your Honor, I would offer into evidence Government Exhibit 19-A, 19-B and 19-C pursuant to the {3403} stipulation.
MR. LOWE:  No objection, Your Honor
THE COURT:  19-A, B and C are received.